Thursday, July 18, 2013

Short of the England and Wales High Court, the Munich-based Bundespatentgericht (Federal Patent Court of Germany) is the steepest challenge for the validity of a patent. This year it has already struck down (except that is decisions can be appealed, as a matter of right, to the Federal Court of Justice) three patents at issue in the ongoing smartphone dispute between major industry players. Apple's slide-to-unlock patent was declared invalid in its entirety, as was a less important hardware patent Apple asserted against the Motorola Gleam "dumbphone" (the nullity ruling is mentioned toward the end of this recent blog post). And Apple took down a Samsung 3G declared-essential patent. None of the proposed amended versions of certain challenged claims were considered patentable in any of those three cases.

After Motorola sued Microsoft in Germany (about eight months after Microsoft's initial U.S. complaint), Microsoft contersued over a few European Patents in Munich and Mannheim. A year ago, the Munich I Regional Court had cleared Motorola's Android-based devices, after an unusual third hearing and in a very close decision, of infringement of this patent. Microsoft appealed the infringement decision to the Munich Higher Regional Court, which will hold an appellate hearing in the fourth quarter. In the meantime, Motorola kept pursuing its nullity case. (In a previous post I provided an explanation of the German bifurcation regime, in which patent infringement cases and nullity actions are on separate tracks with different speeds).

Microsoft has had a hit rate with its German patent infringement actions (again, it was Motorola's, not Microsoft's, jurisdiction of choice) that is far above that of other players like Apple, Samsung, or Nokia. 50% of its full-blown infringement cases brought in either venue (Mannheim and Munich) succeeded -- three in total (1, 2, 3). And while today's patent-in-suit, since there's no injunction in force over it anyway, is not the most important Microsoft patent-in-suit in the German actions, Microsoft still salvaged it in part. Google's Motorola persuaded the Federal Patent Court's Second Nullity Senate under its Presiding Judge Vivian Sredl that the patent was invalid in its granted form except for claim 14, which the court would have been prepared to affirm if Microsoft had not insisted on adjudication of its proposed amendments. Google furthermore defeated one of Microsoft's motions to amend. But one set of amendments went through, and while the scope of the patent is now considerably narrower than before, it's too early to tell whether even the narrowed patent is still broad enough to be infringed by Android. The claims approved today are based on the original claim 14, which introduces a filtering process (for event messages) as another limitation, and the net effect of the approved amendment is that there must be a plurality of distributors (objects that distribute event messages from an event source to an event sink) as opposed to just one.

Microsoft can and, based on what its lead patent attorney in this action, Bardehle Pagenberg's Peter Hess, indicated to the court, will appeal today's decision to the Federal Court of Justice. The patent's filing date was in October 1994, meaning it will expire late next year. As a result, there won't be enough time for Microsoft to obtain an injunction over it after the Federal Court of Justice decides (which usually takes about 18 months after docketing, and docketing is probably still a couple of months away as Microsoft firstly needs a written decision detailing today's bench ruling). For injunction purposes everything depends now on whether Microsoft will, at the appellate infringement hearing in the fall, accuse Android of infringement of the amended version approved by the Federal Patent Court today. The appeals court will perform its infringement analysis based on the amended version. If Google had succeeded in total today, the appeals court would have proposed to stay the case. Now, with the amended version, it's sort of a new game, and an infringement decision could come down in a few months' time.

Today's hearing lasted the whole day (from approximately 9:30 AM to almost 5 PM). I attended the first couple of hours (at the outset the court outlined its preliminary position, with which the final decision was totally consistent, and counsel presented arguments with respect to the granted version of the patent. Then I had to leave, and I returned just about in time for the ruling. In the meantime I did, among other things, the two previous blog posts, which cover the U.S. part of the Microsoft v. Motorola dispute. Cross-jurisdictional patent litigation monitoring comes with certain logistical challenges.

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About Me

Florian Mueller used to be an award-winning intellectual property activist. His 30 years of software industry expertise span different market segments (games, education, productivity and infrastructure software), diverse business models, and technical and commercial areas of responsibility. In recent years, Florian advised a diversity of clients on the patent wars surrounding mobile devices, and on their economic and technical implications. (In order to avoid conflicts of interest, Florian does not hold or initiate transactions in any technology stocks or derivatives thereof, except that he is long AAPL.) He is now developing games for smartphones and tablet computers.